Australian Finance Group Limited v Accent Financial Group Pty Ltd [2005] FCA 66

FEDERAL COURT OF AUSTRALIA

Australian Finance Group Limited v Accent Financial Group Pty Ltd [2005] FCA 66 PROCEDURE – order or judgment on default – failure to serve responsive affidavit – evidence of destruction of documents – absence of candour in disclosures – whether applicant entitled to judgment TRADE MARKS – opposition to registration – evidence of prior use – whether evidentiary burden shifted to respondent – whether respondent's application should be struck out for non-response to orders of Court

Trade Marks Act 1995 (Cth) ss 58, 60, 197 Federal Court Rules O 20 r 1, O 35A r 2, O 35A r 3 Lahore, Patents, Trade Marks and Related Rights (Butterworths, Australia, 2001) DJL v Central Authority (2000) 201 CLR 226 applied Landauer Ltd v Comins & Co (a firm) (unreported, England and Wales Court of Appeal, Civil Division, 14 May 1991) cited Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 considered Lomas v Winton Shire Council [2002] FCAFC 413 cited McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73 cited AUSTRALIAN FINANCE GROUP LIMITED v ACCENT FINANCIAL GROUP PTY LTD WAD 61 of 2003 RD NICHOLSON J 10 FEBRUARY 2005 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 61 OF 2003

BETWEEN: AUSTRALIAN FINANCE GROUP LIMITED

(ACN 006 385 822)

APPLICANT

AND: ACCENT FINANCIAL GROUP PTY LTD

(ACN 067 725 768)

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 10 FEBRUARY 2005

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The applicant's notice of motion filed 31 August be refused insofar as it relies upon the matters particularised in pars 4(a) and 4(c) of the affidavit of Darren John Jackson sworn 31 August 2004. 2. The applicant's said notice of motion otherwise remains on foot. 3. The applicant pay the respondent's costs of the motion as advanced as described in order 1. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.